Posts belonging to Category Government & Regulation

In 2013, the U.S. Chamber of Commerce (which represents some of the largest corporations in the world), published a memo purporting to be “An Empirical Analysis of Class Actions” (available here). The memo, drafted by attorneys at the corporate defense firm Mayer Brown LLP, determined that class actions do not provide a significant benefit to consumers, based on a review of class actions filed in 2009.

However, when the National Association of Consumer Advocates (NACA) and the American Association for Justice (AAJ) reviewed the same cases in a report released last month, they arrived at a very different conclusion (report available here). The NACA/AAJ report found that class actions remain hugely advantageous to consumers in a wide range of cases. Notable benefits to consumers included:

Recovery of $25 million for consumers overcharged for propane by Ferrellgas, who allegedly reduced the amount of propane in its tanks without notifying consumers or changing the labels;

Recovery of $219 million for investors in Bernie Madoff’s Ponzi scheme who lost their retirement savings;

Relief for thousands of disabled and elderly residents of New York City Housing Authority buildings, who forced the city to repair broken elevators in a timely matter; and

Award of $27.8 million for property owners who suffered damages due to the 2008 spill of coal ash sludge from a burst dike at a coal plant operated by the Tennessee Valley Authority.

The Consumer Financial Protection Bureau (CFPB), created by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, has been charged with studying the impact of pre-dispute arbitration agreements in the context of consumer financial products and services, and is poised to release a report later in 2015 that is expected to show that forced arbitration clauses impact tens of millions of consumers and deny relief to consumers harmed by illegal or abusive practices in the financial services industry.

The CFPB released its preliminary results in December 2013 (available here), which found that a sampling of just eight consumer class actions settled between 2010-2012 yielded $350 million in payments to more than 13 million consumers. See CFPB Arbitration Study Preliminary Results at 104. The study also found that, despite the fact that arbitration clauses with class action waivers are standard in the financial industry, few consumers choose to arbitrate their claims (the American Arbitration Association, or AAA, which administers the vast majority of alternative dispute resolution proceedings for large companies, reported fewer than 300 cases each year between 2010 to 2012). Id. at 13. In that same time frame, the study found 29 instances where the AAA “declined to administer the arbitration because of the company’s failure to pay required fees or deposits” and refused to administer further disputes concerning those companies, denying the opportunity for relief for even those intrepid consumers who chose to go the arbitration route. Id. at 117. Of the 29 cases, 28 were consumer-filed disputes, and 23 were credit card disputes.

Thus, class actions are not only beneficial to consumers, but often are the only way to achieve justice against powerful corporations. In the words of former U.S. Supreme Court Justice William O. Douglas, “The class action is one of the few legal remedies the small claimant has against those who command the status quo.” Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 186 (1974).

Editor’s Note: the CFPB Arbitration Study was released on March 10, 2015 and is available here.

On July 31, 2014, President Obama signed the Fair Pay and Safe Workplaces Executive Order. According to the Fact Sheet released by the White House, the stated intent of this measure is to “crack[] down on federal contractors who put workers’ safety and hard-earned pay at risk” by imposing new obligations and requirements on companies who contract with the government. This is President Obama’s second recent executive order relating to federal contractors (an earlier measure prevents those companies from discriminating against workers based on their sexual orientation).

The terms of this executive order require companies bidding for federal contracts worth more than $500,000 to make public any previous violations of labor law from the past three years. These covered federal statutes and equivalent state laws include protections for wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights. Contractors will be required to keep a record of their own mistakes; businesses will be required to self-report their labor violations and update government agencies biannually. Furthermore, contractors will be required to collect similar information from many of their subcontractors. Such measures are intended to encourage companies to settle back wage claims, improve the behavior of contractors, and promote efficient federal contracting.

Another provision of the order requires contractors to give their employees, on their paystubs, for each pay period, information concerning their total hours worked, overtime hours, pay, and any additions to or deductions made from their pay.

Finally, the order also forbids companies with federal contracts of more than $1 million from requiring their employees to sign pre-dispute arbitration agreements waiving their right to litigate workplace discrimination lawsuits, such as disputes arising out of Title VII of the Civil Rights Act or torts related to sexual assault or harassment (except where valid arbitration contracts already exist). Given the U.S. Supreme Court’s recent pro-arbitration, pro-employer decisions, this is a decidedly pro-employee move, which will allow employees to take back the rights that have been stripped away from them in recent years.

The federal government filed nearly-identical amicus curiae briefs in two cases pending before the U.S. Court of Appeal for the Ninth Circuit, arguing that the Federal Aviation Administration Authorization Act (“FAAAA”) does not preempt California’s meal and rest break law. See United States Amicus Brief, Dilts v. Penske Logistics, LLC, 9th Cir., No. 12-55705 (available here) and United States Amicus Brief, Campbell v. Vitran Express, 9th Cir., No. 12-56250 (available here). At issue is an FAAAA provision which provides that a state “may not enact or enforce a law . . . related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” 49 U.S.C. § 14501(c)(1).

The plaintiffs, delivery drivers for Penske Logistics LLC and Vitran Express, had appealed their respective district court orders holding that the FAAAA preempted their California meal and rest break claims. The Ninth Circuit invited attorneys from the Department of Transportation, the Federal Motor Carrier Safety Administration, and the Department of Justice to state their views on the preemption issue. In amicus briefs filed on February 18, 2014, the government argued that California’s meal and rest break law has no significant effect on motor carrier prices, routes, or services, taking the position that it is “squarely within the states’ traditional power to regulate the employment relationship and to protect worker health and safety. Moreover, it is a law of longstanding, general applicability and does not reflect any state effort to regulate motor carriers directly.” Vitran Amicus Brief at 10-11.

The government further argued that California’s meal and rest break law does not conflict with and is not otherwise preempted by federal regulations because it does not specifically address commercial motor vehicle safety and is not incompatible with federal safety standards. Moreover, because plaintiffs were short-haul commercial drivers operating exclusively in intrastate commerce, federal regulations governing the number of hours a commercial motor vehicle carrier may drive without a break were inapplicable and not in conflict with state law. Finally, the government argued that its views on preemption should be accorded deference.

In a particularly vivid exemplar of the renewed potency of antitrust enforcement, District Judge Denise Cote, of the influential Southern District of New York, recently ruled that Apple had violated antitrust law by conspiring with publishers to raise retail prices of eBooks and to eliminate retail price competition. See United States v. Apple, Inc., No. 12-2826, Opinion & Order (S.D.N.Y. July 10, 2013) (available here).

As Judge Cote summarizes, “Apple and the Publisher Defendants shared one overarching interest — that there be no price competition at the retail level,” and the plan was largely successful. Opinion at 11. The crux of the problem, as Apple viewed it, was that Amazon’s pricing was too low for Apple to make a profit. “Through the vehicle of the Apple agency agreements, the prices in the nascent e-book industry shifted upward, in some cases 50% or more for an individual title. Virtually overnight, Apple got an attractive, additional feature for its iPad and a guaranteed new revenue stream, and the Publisher Defendants removed Amazon’s ability to price their e-books at $9.99.” Opinion at 12.

Apple thus set in motion a plan to conspire with publishers to force Amazon to raise its prices. To do so, Apple proposed that publishers adopt the “agency model” for eBooks, by which a publisher sets the retail price of the book, and the eBook store would then take 30 percent of that price. The agency model is reflected in the frequent apology seen at eBook sites such as Apple’s, noting that “prices are set by publishers” — a statement that is stunningly disingenuous in light of the close, conspiratorial relationship between Apple and the publishers.

After negotiating deals with Apple, five major publishers approached Amazon simultaneously with an offer it couldn’t refuse — either Amazon could move over to the new, higher-priced agency model, or it would have to wait months to begin selling best-selling titles in its store. See Opinion at 64-72. Only by colluding could the play work, because if any single publisher approached Amazon, Amazon could have balked and removed that publisher’s titles from the Kindle Store. Id.

The opinion documents Apple’s plan to undermine the dominance of Amazon and its Kindle in the emerging e-book technology, and with reference to astonishingly candid evidence including internal Apple emails and memos. In its initial meeting with publishers to discuss the conspiracy to fix prices, Apple outlined a strategy categorically at odds with U.S. antitrust laws, stating that the company “cannot tolerate a market where the product is sold significantly more cheaply elsewhere.” Opinion at 33.

Originally, the federal government had sued Apple along with the five other publishers — Lagardere SCA’s Hachette Book Group Inc and Macmillan, News Corp’s HarperCollins Publishers LLC, Pearson Plc’s Penguin Group (USA) Inc and CBS Corp’s Simon & Schuster Inc —in April of 2012. However, while the publishers settled with the government, Apple insisted they had done nothing wrong—a stance that Apple continues to hold in the wake of this week’s ruling, vowing to appeal to the Second Circuit.